Questions about firearms are never far from the mind in the American political discourse. Sometimes it simmers on the back burner, bubbling at the rhythm of political campaigns. Other times it surges to the forefront, often in the wake of atrocities like one committed against concert goers in Las Vegas last year.
Guns are not central to this blog or its host law firm’s practice. Nor is it our purpose here to weigh in on the political, cultural, or moral debate. But any lawyer caring about the law occasionally puts thoughts into constitutional questions and new developments.
Those can sometimes be hard to detect at first. It may be the case with an unheralded case from Washington State, whose Supreme Court dug into the intricacies of the difference between a tax and a fee. That case might, oddly, turn out to whisper the first words of a new debate on guns.
The City of Seattle had adopted an ordinance that imposed a fee each time someone buys a gun or ammunition. The State of Washington, it turns out, has a law that prohibits a city from imposing its own taxes. So gun owners and gun stores alike sued the City, arguing that its so-called fee was really a tax. Seattle lost.
So far, so boring. But Seattle’s fee (or tax) was openly cast as a fiscal measure to defray the cost, and study the root causes, of gun violence. It is a small step from there to describing it as a measure to discourage gun ownership altogether.
Let us be clear. The Second Amendment was not at issue in the Washington State case. That action was resolved solely on the application of state law. Yet one wonders if fees and taxes will be the next topic in the legal debate on guns.
Constitutionally speaking, the debate on guns has laid dormant. The Supreme Court has been silent since it declared gun ownership an individual and fundamental right in two cases from 2008 and 2010. It has declined to step into the messy business of defining the contour of that right.
Lower courts have been left to ponder where one person’s Second Amendment rights end and where organized society’s duty starts. At a minimum, the right to possess a gun for self-defense in the home is guaranteed. On the other hand, the state’s police powers emphatically include the right to prevent felons from owning guns. Where does the needle move in between? The Highest Court has declined to hear several cases inviting it to opine.
Now, we can imagine a new facet of the gun debate that would not require the Supremes to tackle those kinds of problems. The new deliberations could start with a more activist city council – or state legislature –imposing such a high tax on guns that purchasing them becomes impossible.
But it would still be a tax – some kind of sales tax. Or does it stop being one if it is $1,000 per gun? Or $10,000? Is there then an infringement on the Second Amendment, and if so, where does it start?
It may take years for local politics to deliver such a scenario and for its constitutionality to be heard by the US Supreme Court, should it ever choose to. In the meantime, constitutional lawyers will not doubt start to ponder the question… Can you tax guns out of existence?