Analyzing Gun-Violence-Prevention Taxes Under Emerging Firearm Fee Jurisprudence

Abstract

Gun and ammunition taxes and fees have long been used to fund wildlife conservation programs and regulatory schemes that ensure guns are being purchased and possessed lawfully. In recent years, taxes have been proposed as a policy tool to help mitigate the staggering social and economic costs of gun violence by providing a reliable source of funding for gun safety and violence prevention programs. These proposed “gun-violence-prevention taxes” have been met with opposition, including from Second Amendment litigants who argue that courts should strike down gun and ammunition taxes under the Supreme Court’s First Amendment fee jurisprudence — a body of cases examining taxes on protected expressive or religious activity. This Article aims to evaluate that argument under accepted principles of both First and Second Amendment law. Although just ten years have passed since Heller recognized an individual right to possess handguns in the home for self-defense, this Article argues that enough is known about the history of gun and ammunition taxes, the differences between the First and Second Amendments, and the decade of post-Heller lower-court jurisprudence to conclude that most proposed gun-violence-prevention taxes are constitutional.

Keywords: Second Amendment, 2nd Amendment, District of Columbia v. Heller, gun tax, ammunition tax, federal firearm excise tax, First Amendment, 1st Amendment, fee jurisprudence