Paul L. Caron

Friday, August 23, 2019

Don’t Ban Assault Weapons—Tax Them

Saul Cornell (Fordham), Don’t Ban Assault Weapons—Tax Them:

AtlanticA solution from the founding era might work again today.

The nation is debating what to do about assault-style weapons, what gun-rights advocates like to call modern sporting rifles. Gun-rights champions argue that these weapons are in common use, and hence protected by the Second Amendment. Gun-control supporters respond that these weapons have no place on our streets and ought to be banned. But there’s a better solution, and one that avoids the constitutional objections typically raised by gun-rights advocates. Rather than banning these weapons, the time has come to tax them.

Taxation offers one of the most promising and underutilized tools to change the calculus of gun violence in America. Few Americans realize that guns and ammunition are already taxed to pay for conservation efforts. Gun owners have happily tolerated federal taxes for years to support this worthwhile public-policy goal. Surely even the most die-hard gun-rights supporter could not argue that, although it is constitutional to tax weapons and ammo to protect animals, it is not constitutional to tax them to protect people.

Taxation sidesteps entirely the constitutional qualms some have over assault-weapons bans. It also addresses the criticism often voiced that singling out assault weapons is irrational because it would leave hunting rifles that have many of the same features on the streets. One of the problems that gun bans pose is that that gun makers simply modify their weapons to make them street-legal. Moreover, gun bans do not address the problem posed by guns already in private possession. Rather than requiring an expensive buyback program, gun taxation would use a market-based strategy to reduce the number of guns in circulation by effectively raising the price of ownership. The additional revenue generated by this policy could be used to fund research on violence reduction and support existing programs to help local communities deal with the ravages of gun violence. ...

Arguments over the Second Amendment’s meaning too often ignore a simple fact: The goal of the right to keep and bear arms is to safeguard the security of a free state. Today’s gun policies are making most Americans less, not more, secure. Instead of simply extolling the virtues of the Second Amendment, we should take some of our cues from the policies the founding generation used, including taxation. We need to understand how the Second Amendment fit into a society that valued peace as a vital precondition for the exercise of liberty. At the very minimum, considering taxation as a tool of gun policy should spur us to think more creatively about how to solve our contemporary society’s problem with firearms. Taxation offers a more flexible set of tools to achieve a goal all Americans seek: lowering the costs of gun violence to Americans.

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Firearms are already heavily taxed at point of sale. And as anyone with a hint of education about Constitutional issues should know, placing heavy taxes on the means of exercising a right is also an infringement of that right and fails to pass Constitutional muster. The classic example given in most ConLaw classes is taxing printer's ink in order to dampen exercise of First Amendment rights. Another example is poll taxes in order to vote.
"The goal of the right to keep and bear arms is to safeguard the security of a free state." No, it's to safeguard the freedom of the citizenry of a state that wants to limit their freedoms.

Posted by: ruralcounsel | Aug 23, 2019 3:54:01 AM

Quote: The nation is debating what to do about assault-style weapons, what gun-rights advocates like to call modern sporting rifles.

What an absurd article. Those killing "on the streets" use handguns not rifles nor will they be any more inclined to pay taxes on the weapons they use than they are on the illegal drugs they sell. That's obvious. Why can't gun controllers see that? Why do they put every gun owner into the same category? Or perhaps more accurately, why does their real agenda seem to be to disarm the law-abiding while doing nothing about armed criminals? Yeah, that's the real issue.

Posted by: Michael W. Perry | Aug 23, 2019 5:27:44 AM

Well said ruralcounsel! After all the *reason* guns are good for freedom (like their functional predecessor bows and arrows) is that they are not only effective but accessible to the average decent citizen.

Posted by: Anand Desai | Aug 23, 2019 5:59:51 AM

@ruralcounsel, you are correct that taxation of the exercise of a right *can* infringe on the right, but it's not right to say that *any* such taxation is unconstitutional. Your own poll tax example proves as much: poll taxes are not unconstitutional as an infringement on the right to vote; they are unconstitutional only because we amended the constitution to make them illegal.

Posted by: Matt | Aug 23, 2019 6:27:24 AM

The author neglected to mention that fully automatic weapons already require a tax stamp and the ATF , which enforces that law, was part of the IRS until around 1972.

Posted by: Smitty | Aug 23, 2019 6:40:22 AM

Here are some thoughts I posted elsewhere about taxing firearms:

Posted by: Jeff Hoopes | Aug 23, 2019 8:52:15 AM

Your proposal is not to tax “assault weapons” or firearms in general, as obviously physical objects don’t pay taxes. Your object is to tax the individual who purchases or retains ownership of a firearm. You do so on the presumption that the firearm owner is responsible for an externality (criminal violence) and that a tax would generate funds to offset that criminal violence externality. However you have offered no support for the presumption that firearm owners are any more responsible for criminal violence than a member of the general public. In fact, firearm owners must have a clean criminal record, mental commitments and substance abuse (as well as other requirements) to own a firearm and are therefore less likely to be responsible for criminal violence. For those purchasing a firearm for self-defense, they are already bearing a cost for criminal violence for which they are not responsible.
Taxes are a powerful tool. Their use to achieve social engineering objectives, especially when doing so infringes upon a constitutionally protected right, is nothing short of cultural intolerance. That is precisely why our Founding Fathers wisely placed certain individual rights outside the scope of governmental interference.

Posted by: Jon Powell | Aug 23, 2019 4:24:10 PM

@Matt Did I say *any* taxes? No. Don't erect strawman arguments. And any taxes as proposed by this article must by necessity be "heavy" in order to achieve what he claims those taxes would be intended to achieve. In fact, almost by definition and necessity, his taxes would have to be unConstitutional in order to have an effect. Such effect would be proof of their unConstitutional nature.

Posted by: ruralcounsel | Aug 26, 2019 3:50:52 AM

@ruralcounsel, I think you miss my point. What I'm saying is that your analysis is too simplistic. It's not true that any tax on the exercise of a constitutional right is unconstitutional. The sale of ink and paper used in printing is taxed, just as is the sale of firearms. It’s not true that any “heavy” tax on the exercise of a constitutional right is unconstitutional. As you say, sales of firearms are already “heavily” taxed. So is the sale of alcohol, even though the alcohol might be used in a religious ritual protected by the First Amendment.

Finally, it’s also not true that any tax that has an effect on the exercise of a constitutional right is unconstitutional. Your original example (and mine) proves as much. Poll taxes were constitutional at the federal level until 1964, when the 24th Amendment made them unconstitutional (and were viewed as constitutional at the state level until the Harper decision in 1966). Both historical analysis and the contemporaneous justifications for such taxes indicate that they had a significant impact on the exercise of the right to vote.

The typical analysis involved in deciding whether a tax unconstitutionally interferes with the exercise of a right is equal protection law: Does the tax discriminate between the exercise of the right by different classes of people in a way that is not sufficiently closely tied to a valid government purpose? So, for instance, the poll tax was struck down in Harper because the court viewed it as effectively denying the franchise to poor people (and, implicitly, to racial minorities); the printing supplies tax in Minneapolis Star was struck down because the court viewed it as targeted to a small group of publishers whose purchases exceeded the statutory threshold for imposition of the tax; similarly for the gross receipts tax in American Press Co.

It certainly is possible that a tax on firearms could fail constitutionally because it had a discriminatory effect on a particular sub-class of prospective purchasers. But you are wrong in saying that any tax that successfully reduced the sale of firearms would definitely fail.

Posted by: Matt | Aug 28, 2019 9:52:55 AM