State appeals court revives challenge to Cook County’s gun, ammo tax

[February 23, 2024]  By Greg Bishop | The Center Square

(The Center Square) – Cook County’s tax on guns and ammunition is still in place, but a case alleging the ordinance violates the U.S. Constitution's Second Amendment has been revived.

In 2012, Cook County approved a $25 per gun and 1 to 5 cent per cartridge of ammunition tax. Initial challenges went to the Illinois Supreme Court, which in 2021 ruled against the county. The county then modified the ordinance.

Gun rights advocate Todd Vandermyde sued again on a Second Amendment challenge. After a district court dismissed the case, earlier this week an appeals court reinstated the challenge.

“The Firearm and Firearm Ammunition Tax Ordinance cannot be sustained under the Supreme Court’s fee jurisprudence. Defendants correctly point out that the Supreme Court has held that the constitution does not necessarily forbid the charge of a ‘fee’ to a person associated with the person exercising a constitutional right,” said the three judge panel of the Appellate Court of Illinois First Judicial District. “Accordingly, the tax cannot be countenanced as a permissible fee that can be assessed to a person in conjunction with that person’s exercise of the Second Amendment right. Therefore, the complaint cannot be dismissed on that basis.”

The appeals court reversed the district court decision and remanded the case for further action.

Vandermyde applauded the decision, saying it was a “true smackdown” of the county’s arguments.

“This is not a finding that the tax is unconstitutional. It is a finding that the lower court erred in dismissing the case and that every argument of Cook County is such that the appellate court didn’t buy it,” Vandermyde said.

A message seeking a statement from the Cook County president’s office was not immediately returned.

Vandermyde said he’s confident they’ll prevail.

“At some point in time, if we prevail, Cook County is going to be refunding millions of dollars to people,” he said.

At issue was whether the ordinance is a fee or a tax, and whether a tax on a constitutional right is an infringement.

“To infringe was to hinder and the county, very suspect, left that part of the definition out of their pleadings and filings with the court and they were called on it,” Vandermyde said.

Appeals court judges said “(the Second Amendment guarantee, of course, forbids destroying the right, but it also forbids lesser violations that hinder a person’s ability to hold on to his guns). Accordingly, we reject defendant’s contention that plaintiffs have failed to plead facts showing that the ordinance could infringe upon their right to keep and bear arms.”

The case now goes back to the district court for further action.