Senseless in Seattle: New Guns & Ammo Tax Meets Court Challenge

The city of Seattle, Washington, passed an ordinance this summer that imposes a $25 tax on every gun sold in the city, and 5 cents on each round of ammunition, except .22 caliber and smaller, which will carry a tax of 2 cents per round.

Not only is the law senseless, it’s a huge waste of taxpayers’ money, and it’s patently illegal. The Second Amendment Foundation, based just outside of Seattle, has already filed suit, along with the National Shooting Sports Foundation, the National Rifle Association, two Seattle gun stores, and a pair of local residents to block the city’s action.

This is not the first time SAF has taken Seattle to court. Just a few years ago, SAF had to sue to block an ordinance banning legal guns in city parks. It won that suit, and it is very likely that SAF and its co-plaintiffs will win this new one as well, because the state has a long-standing preemption law that is very clear and unequivocal. It says regulation of firearms is the exclusive purview of the State Legislature, and any law, ordinance or regulation that is firearm-related must go through that body.

Seattle’s latest attempted work-around is to claim it is not regulating firearms or ammunition, merely taxing them under normal taxing authority. Courts all over the country have repeatedly rejected this sort of pedantic claim, noting that the operative result of the law, and indeed its openly stated intent, is to limit and impact the purchase and ownership of firearms and ammunition. Even if these taxes were strictly intended as revenue generators, they would still be in violation of the preemption law. But since the tax is billed as a “public safety” measure, there is no basis whatsoever for the claim that it is not intended to infringe on the legislature’s exclusive firearm territory.

It is probably no accident that the tactic being employed by Seattle – regulation through taxation – is the same tactic Congress used to get around the Second Amendment back in 1934 when it passed the National Firearms Act. Like Seattle’s leaders today, Congress knew it didn’t have the authority to enact its restrictive legislation, but it used the convoluted tax ploy anyway. The big difference is, back in 1934, there was no one particularly interested in trying to block Congress’ unconstitutional action. By the time a case finally worked its way through the courts to the Supreme Court (U.S. v. Miller), the restrictions were fairly well established, the case was very narrow, and the individuals involved were admitted career criminals. At the Supreme Court, there was not even anyone to argue for the plaintiffs because one was dead, the other was in prison on other charges and neither had paid their attorneys. The only arguments in the case came from government lawyers. It ended up with the Court concluding that, since it wasn’t aware of a short-barreled shotgun normally being used in the militia, it didn’t see a reason to extend the protections of the Second Amendment to such a weapon.

The ruling wasn’t particularly bad, though there were several flaws in it, such as the fact that short-barreled shotguns have been common in military service since the invention of gunpowder, but it didn’t really matter much. The Supreme Court used the case to avoid overturning the unconstitutional tax law known as the National Firearms Act, and the lower courts found enough wiggle room in the decision to completely dismiss Second Amendment cases for the next 70 years without so much as a peep out of the Supreme Court on the issue. Some of the misconstruction of the lower courts was finally corrected with the Heller and McDonald cases in 2008 and 2010, but judges now twist and distort those decisions, and so far, the Supreme Court has refused to revisit the issue.

Washington judges might want to be just a flexible with Seattle’s new gun and ammo tax, but it’s not that easy. Where there was virtually no opposition to the NFA in 1934, today there are three well-funded, powerful organizations, backed by dozens of dedicated grassroots groups, vociferously opposed to the Seattle scheme. There is also well-established precedent on both the breadth of firearm preemption laws, and the chicanery of claiming that a restrictive tax is not a regulation. Courts have repeatedly and fairly consistently ruled that prohibition under the guise of taxation is still prohibition, and, therefore, all restrictions and limitations on government powers still apply.

But the Seattle politicians and their lawyers are forging ahead, spending untold thousands of the taxpayers’ dollars on another case that they should have no chance of winning, to defend a law that, if it is allowed to stand, will have no effect on violent crime. But of course, reducing crime has never really been the issue or the objective of gun-control zealots. Making guns and gun ownership difficult, expensive, legally risky and socially unacceptable is the goal. The real motivation behind the ordinance is an irrational fear of guns and gun owners.

The only real concern in this case is that Washington judges, including those on the state supreme court, are elected to their positions, and since Washington politics is dominated by two ultra-liberal, urban counties, while the rest of the state is staunchly conservative, Seattle could end up winning this case in spite of the law. If it does, it will be a travesty that will widen the chasm between Seattle and most of the state. While I have confidence in the SAF legal team and its allies, there’s no beating a stacked court, so I hope Washington gun owners have been paying attention to their ballots when it comes to electing judges.

What about judges in your state? Who have you been electing to judgeships? Judges matter, and most people don’t have a clue about the judges they vote for. There are resources available – most with an agenda of their own – so it’s up to you to sift through the information and pick the people who will ultimately decide your laws.

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